The second count charged that "The said John Bond and Ebenezer Slaughter, intending to deceive and defraud the said Francis Inge, did wrongfully and deceitfully advise and persuade the said Francis Inge to buy of the said John Bond a certain negro man slave Harry (102) for the sum of $400, and did then and there, for that purpose, falsely affirm to the said Francis Inge that the said negro slave Harry was sound and free from any disease whatever, and did thereby deceitfully procure the said Francis Inge to buy the said negro slave Harry of the said John Bond at the price and for the sum of $400 aforesaid; and the said Francis Inge avers that, confiding in the said affirmation of the said John Bond and Ebenezer Slaughter to be true, and not knowing to the contrary, he did afterwards, to wit, etc., purchase and buy the said negro man slave Harry at the price and for the sum of $400 as aforesaid, which sum he paid to the said John Bond accordingly; whereas, in fact, the said negro slave Harry was at the time of making the affirmation aforesaid of the said John Bond and Ebenezer Slaughter not sound and free from disease; but was infirm, unsound, and afflicted with a disease of the liver, and that the said John Bond and Ebenezer Slaughter well knew the same, viz., at, etc.; and the said Francis Inge further says that said negro slave Harry from the time of the sale aforesaid to the time of his death continued infirm, unsound, and afflicted with the said disease of the liver, etc.; and so the said John Bond and Ebenezer Slaughter false and fraudulently deceived the said Francis Inge, etc. Wherefore," etc.

A bill of sale was given for the negro which contained no warranty of soundness; and it was in evidence that Bond expressly refused to sign a bill of sale containing such warranty. There was also evidence given below of repeated conversations as to the soundness of the slave; but all these took place before the execution of the bill of sale.

The judge charged the jury that to entitle the plaintiff to recover it was necessary that the evidence should satisfy them that the defendants, or either of them, had a knowledge of the unsoundness of the negro and failed to disclose it at the time of the sale. The jury (103) found a verdict against Bond, and for Slaughter; and a new trial having been refused Bond, he appealed to this Court from the judgment rendered against him.

TAYLOR, C. J.

The first count in the declaration charges that the defendants, knowing the slave to be unsound, by a false affirmation of his soundness procured a sale of the slave to the plaintiff. The second charges that the defendants advised the plaintiff to buy the slave, and, falsely affirming him to be sound, procured the plaintiff to buy him; whereas they knew the slave to be unsound. In both counts the false affirmation is stated to be the means by which the plaintiff was induced to make the bargain, and the making that affirmation with a knowledge to the contrary, whereby the plaintiff was injured, constitutes the cause of action. The action is clearly conceived in case, on tort, and the declaration as strongly marked with those features, as in Pasley v. Freeman, 3 Term, 51, the foundation of which is fraud and deceit in the defendant and damage to the plaintiff. The affirmation, as stated in the declaration, is not laid in the way of a contract, the breach of which has brought damage on the plaintiff, but as a deceit practiced upon him, whereby he was induced to make the contract. In some cases it is true that an affirmative as to the title of a chattel, when the seller is in possession, will be considered as a warranty, for as to the title the law itself implies a warranty; and even without such information, if a man sell goods as his own and the title prove deficient, the buyer may recover satisfaction. 2 Bl., 451. But as to the soundness of goods, an affirmation does not amount to a warranty unless it appear on the evidence to have been so intended. In declaring on a warranty, the charge is laid in assumpsit, either warrantizando vendidit or he undertook and faithfully promised. But in this case there is nothing like a (104) promise and undertaking. And what shows beyond all controversy that the action was not intended to be on a warranty is that a bill of sale was given without a warranty, and that Bond expressly refused to enter into one. That no contract existed is further evident from this, that whatever was said concerning the soundness of the slave was before the sale, and the true contract of the parties was reduced to writing by the bill of sale, to which no other terms or stipulation can be added. "I hold," says one of the judges, "that if a man brings me a horse, makes any representation whatever of his quality and soundness, and afterwards we agree in writing for the purchase of the horse, that shortens and corrects the representations; whatever terms are not contained in the contract do not bind the seller, and must be struck out of the case." 4 Taunton, 786. But if there is any fraud in the case, that cannot be done away by the contract, and the buyer may, notwithstanding, bring his action on the case, which is the only one that could be brought in this case. It, therefore, seems to me that those authorities do not apply which go to show that a breach of contract cannot be converted into a tort, for in all of them there was a clear contract, and in the leading ones the defendants had a joint ownership in the property. I do not think it was in the least degree necessary that it should be left to the jury to say whether the affirmation stated in the declaration was made by the defendant or not, since it was merely inducement and introductory to the gravamen, which is the fraudulent concealment of a defect in the slave; and, generally, where a person is sued in tort for knowingly selling an unsound article, the charge is laid either with a false affirmation of the soundness or that the defendant sold it for and as a sound article, or with a false warranty, all which terms import the same thing, and are never held as making a contract the gist of the (105) action. As the jury have verified the charges in the declaration, I am of opinion that the plaintiff is entitled to recover, and that there ought not to be a new trial.

And of this opinion were the other judges. Cited: McKinnon v. McIntosh, 98 N.C. 92; Wrenn v. Morgan, 148 N.C. 105; Robertson v. Halton, 156 N.C. 220; Hodges v. Smith, 58 N.C. 259; Tomlinson v. Morgan, 66 N.C. 560.